In
January 2011, Plaintiff Incarnacion Speaks
("Speaks") was involved in a motor vehicle accident
while riding in the front passenger seat of her 1994 Mazda
Protege DX four-door sedan ("Protege"). (Final
Pretrial Or., Doc. 142 at ¶ IV(F).) The Protege was
equipped with automatic passive shoulder and manual lap belts
for the front seat occupants. (Id. at ¶ IV(G).)
At the time of the collision, Speaks was wearing both the
automatic shoulder belt and manual lap belt. (Id.)
In January 2014, Speaks sued Defendant Mazda Motor
Corporation and its related entities ("Mazda"),
alleging her Protege's seat belt system failed to
restrain her properly and caused life-threatening internal
injuries. (Doc. 1 at ¶ 10.) In October 2015, a jury
returned a verdict in favor of Mazda after a 7-day trial.
(Doc. 189.) Speaks appealed, (Doc. 193), and, in July 2017,
the case was remanded for a new trial, (Doc. 207). Trial is
scheduled for May 14, 2018. (Sched. Or., Doc. 226.)

Speaks
seeks leave for her biomechanical expert Michelle Hoffman to
supplement her initial November 2014 expert disclosure with
materials from January 2015 and November 2017. (Doc. 228.)
Mazda seeks to exclude Ms. Hoffman's testimony in its
entirety. (Doc. 238.) Substantially similar motions were
raised before Judge Christensen prior to the first trial, and
both were denied. (See Docs. 80, 125.) As explained
below, Ms. Hoffman's testimony will be limited to that
disclosed in November 2014 report.

I.
Supplementation

On
January 16, 2015-approximately two months after the expert
disclosure deadline-Speaks supplied Mazda with new materials
supporting Ms. Hoffman's original report, consisting of
74 photographs and three pages of notes documenting an
additional surrogate study that Ms. Hoffman completed on or
about January 6, 2015. (Doc. 229 at 2.) Mazda objected to the
supplementation as untimely, (Doc. 59), and, on March 16,
2015, Judge Christensen granted Mazda's motion to
preclude Ms. Hoffman from testifying as to the evidence and
opinions disclosed in January 2015, (Doc. 80). Ms. Hoffman
testified at the October 2015 trial. (See Trial Tr.,
Vol. II.)

Following
remand, a second preliminary pretrial conference was held on
October 4, 2017, and an updated Scheduling Order was entered,
setting a discovery deadline of December 1, 2017. (Doc. 226,
at ¶ 1.) Discovery was limited, however, "to
updated medical and employment records." (Id.)
Per the parties, no deadlines were set for expert disclosures
because they were considered "completed." (See
id.) Nevertheless, Speaks now seeks to
"supplement" Ms. Hoffman's report with the
January 2015 material, as well as a more recent report, dated
November 27, 2017. (See Doc. 229-1.) She insists
that Mazda would not be prejudiced as it has time to review
the materials. Mazda, on the other hand, argues that
Speaks' request was already adjudicated by Judge
Christensen, and that the late disclosures are barred by Rule
26. Mazda has the better argument.

A.
Reconsideration

Mazda
first argues that because Speaks' motion requests
reconsideration of Judge Christensen's March 2015 Order,
(see Doc. 80), she was required to seek leave and
must show:

(1) (A) the facts or applicable law are materially different
from the facts or applicable law that the parties presented
to the court before entry of the order for which
reconsideration is sought, and

(B) despite the exercise of reasonable diligence, the party
applying for reconsideration did not know such fact or law
before entry of the order; or (2) new material facts
arose or a change of law occurred after entry of the order.

L.R. 7.3(b). Here, the only changed circumstance is the fact
the matter has been remanded for a new trial. Indeed, Speaks
seeks to "supplement" Ms. Hoffman's disclosure
in almost the exact same fashion-including much of the same
material-as she did prior to Judge Christensen's 2015
Order. Remand alone did not reopen the opportunity for expert
disclosure or further discovery. SeeMillenkamp
v. Davisco Foodlnt'lInc., 2009 WL 3430180, at *2 (D.
Idaho Oct.

22,
2009) (recognizing that "[t]he fact that a new trial has
been set does not restart the entire case"). And,
"where litigants have once battled for the court's
decision, they should neither be required, nor without good
cause permitted, to battle for it again." Disimone
v. Browner,121 F.3d 1262, 1266-67 (9th Cir. 1997)
(quotation marks and citation omitted). But, even assuming
remand gave Speaks a second bite at the apple, she is still
not entitled to relief under Rule 26.

B.
Supplemental Report under Rule 26(e)

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Speaks
identifies Ms. Hoffman&#39;s late disclosure as
"supplemental." However, under Rule 26(e)(1) a
supplemental report may only be filed: "1) upon court
order 2) when the party learns that the earlier information
is inaccurate or incomplete; or 3) when answers to discovery
requests are inaccurate or incomplete." Keener v.
United States,181 F.R.D. 639, 640 (D. Mont. 1998).
Unless Speaks is conceding that the disclosure made on
November 17, 2014, was inaccurate or incomplete, neither the
January 2015 nor the November 2017 disclosure is a
supplemental disclosure under the rules. Rather, "[w]hat
is set forth in the [later] report[s] is the information,
reasoning and ...

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